Immigration Law

Every year, tens of thousands of noncitizens in removal proceedings are held and processed through an expanding web of immigration detention facilities across the United States. The use of immigration detention is expected to dramatically increase under the Trump administration’s mass deportation policy. I argue that this civil confinement system may serve a critical socio-legal function that has escaped the attention of policymakers, scholars, and the public alike. Using extensive original data on long-term immigrant detainees, I explore how immigration detention might function as a site of legal socialization that helps to promote or reinforce widespread legal cynicism among immigrant detainees. This legal cynicism is characterized by the belief that the legal system is punitive despite its purported administrative function, legal rules are inscrutable by design, and legal outcomes are arbitrary.

The crisis in immigration court adjudication is well-documented. This Article contends that critiques of immigration adjudication are incomplete and understated because they have failed to account for the following reality: the vast majority of persons ordered removed never step foot inside a courtroom. In addition, even when cases are filed with the immigration courts, a substantial number result in removal orders without adjudication of the merits of the case. Removal in what this Article calls the “shadows of immigration court” have far eclipsed standard removal proceedings. The Article provides a descriptive account of five types of removal orders that comprise immigration court’s shadows: (1) expedited removal at the border, (2) reinstatement of prior removal orders, (3) administrative removal of non-lawful permanent residents with aggravated felony convictions, (4) stipulated removal orders following waivers of the right to a court hearing, and (5) in absentia orders for failure to appear in immigration court. The Article identifies several concerns that apply to mainstream immigration court proceedings and asserts that those critiques are amplified in such shadow proceedings. It concludes by arguing for more sustained inclusion of shadow proceedings in reform proposals directed at improving immigration adjudication.

Part I of this Article observes that, surprisingly, the Constitution provides little guidance on many of the basic issues in immigration law, such as which governmental institutions have the authority to create the rules regarding who may come to the United States, the limits on governmental power to exclude or remove noncitizens (if any), and the degree to which noncitizens within the United States are protected by the U.S. Constitution (if at all). Part I then describes how the Declaration of Independence explicitly and implicitly addresses some of these questions.

Part II explains how the Declaration’s espousal of universal rights, as well as its special solicitude for immigrants, has led the Supreme Court to conclude that the Constitution protects noncitizens from laws seeking to regulate their conduct. Part II focuses on the Supreme Court’s groundbreaking decision in Yick Wo v. Hopkins, in which the Court held for the first time that the Constitution applies to noncitizens living in the United States—a decision based, in part, on the universalist philosophy of the Declaration of Independence. A few years later, the Court extended Yick Wo’s rationale to provide constitutional protection even to those noncitizens found illegally in the United States. Yet during the same time period, the Court declined to adopt this expansive view of the Constitution when it came to determining noncitizens’ rights to enter and remain in the United States.

Part III argues that granting noncitizens constitutional protection from laws regulating their conduct is of little practical value when they have no such protection from laws restricting their ability to enter or remain in the United States. To give just one example, granting noncitizens the constitutional right of free speech means little when noncitizens may be deported for that same speech. Furthermore, as a matter of constitutional theory, it is hard to reconcile the universalist view of the Constitution’s scope with a membership approach that excludes noncitizens from that protection when it comes to laws selecting them for admission. If the Declaration’s universalist philosophy is to be taken seriously, the government’s selection process must be cabined by the same constitutional restraints that apply to laws that regulate the lives of citizens and noncitizens alike.

The Article concludes by noting how the plenary power doctrine is slowly eroding, albeit without ever being explicitly disavowed by the Court or the executive branch. Professor Hiroshi Motomura has observed that courts often strive to avoid interpreting federal immigration laws in ways that conflict with the Constitution, even though Congress is mostly free from constitutional constraints when legislating rules of admission. He labels these constitutional influences “phantom norms.” This Article argues that the Declaration’s universalism and its inherent embrace of the right to immigrate are phantom norms that also appear to be influencing the development of immigration law.

Claudia, a Mexican American with family roots in the United States since the mid-1800s, walked out of a grocery store, happily chatting with her three young children in Spanish as they walked toward her car. Before arriving at her car, she was stopped by government officials and asked for proof of citizenship. Speaking to the officers in accent-free English, she explained that she is in fact a United States citizen, offering her driver’s license as proof. After rejecting her driver’s license, the officers requested another form of identification as proof that she was in the United States legally. Eventually, Claudia gave the officers something that satisfied them, and they allowed her to continue with her children to her car. After the event, Claudia wondered what she might do in the future to avoid being stereotyped as an “undocumented Mexican.”

After struggling to provide for her children in her native country of Mexico, Esperanza lost one of her children to starvation. Devastated, she determined to leave her children in the care of family and seek work in Los Angeles. Pursuing what she believed to be a legitimate job offer, Esperanza was instead trafficked into a U.S. sweatshop. Separated from her children and unable to send any earnings home, Esperanza was cruelly abused by her traffickers. She recalls one trafficker asserting: “Dogs have more rights than you in this country. You are here illegally. And nobody can trust you. If you go to the police they might put you in jail because you have no papers . . . and if you do something I will call to the INS and they send you back, and not only send you back, they might put you in jail.”

Early in the morning of July 15, 2010, protestors began to assemble outside the Sandra Day O’Connor U.S. Courthouse on the sun-baked streets of downtown Phoenix. Nearly 400 individuals gathered, armed with megaphones, sunscreen, and a firm sense of resolve, to demonstrate their support or, more likely, opposition to Arizona’s immigration law known as S.B. 1070.

Senate Bill 1070, the Support Our Law Enforcement and Safe Neighborhoods Act, was signed into law by Arizona Governor Janice Brewer on April 23, 2010. The newly-enacted law, which added provisions to the Arizona law concerning the employment, law enforcement, and documentation of immigrants, has been labeled by pundits as “the nation’s toughest bill on illegal immigration.” The demonstration on July 15, one of dozens to occur throughout the nation that summer, was fueled by the first day of preliminary injunction hearings held by U.S. District Court Judge Susan Bolton, who was presiding over the seven lawsuits challenging S.B. 1070.

As states enact immigration-related laws requiring local law enforcement officers to identify and detain undocumented immigrants, the Fourth Amendment rights of aliens are becoming critically important. In United States v. Verdugo-Urquidez, a divided Supreme Court suggested that aliens in the United States do not have Fourth Amendment rights unless they have established “substantial connections” to the United States. Lower courts have relied on Verdugo’s holding to categorically deny Fourth Amendment rights to certain classes of undocumented immigrants. Commentators have criticized the “substantial connections” test as an isolated misinterpretation of Court precedent regarding the rights of aliens within the United States.

This Article, however, takes a new approach. It analyzes Verdugo in the context of the Supreme Court’s treatment of aliens’ constitutional rights both inside and outside the United States. In doing so, this Article identifies the Supreme Court’s evolving approach to membership and highlights Verdugo’s pivotal role in the development of that approach. This Article suggests that the Court’s increasing extension of membership rights to aliens outside the United States and denial of membership rights to aliens within the United States is evidence of an emerging “post-territorial” approach to membership that rejects territorial presence as an accurate measure of membership. Rather, the post-territorial approach looks to more substantive indicators of membership, including community ties and mutuality of obligation, to afford rights. Ultimately, this Article examines Verdugo’s progeny through a post-territorial lens and concludes that lower courts that categorically deny certain classes of undocumented immigrants Fourth Amendment rights violate Verdugo’s post-territorial mandate by failing to evaluate the claimant’s substantive indicators of membership.

Over the past decade, the tragedy of child soldiers has attracted increased attention. Much of the world, including the United States, has recognized the toll that this practice takes on the youth of our time and has dedicated itself to preventing the further use of child soldiers. In December of 2002, the United States became a party to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (“Optional Protocol”) and joined forty-four other states in the fight against the use of child soldiers. As a party to this protocol, the United States has committed itself to taking “all feasible measures to . . . accord to [persons within its jurisdiction recruited or used contrary to the protocol] all appropriate assistance for their physical and psychological recovery and their social reintegration.”

Despite this commitment, child soldiers are often denied asylum in the United States because of acts they were forced to commit while serving in foreign armed forces. The United Nations’ Committee on the Rights of the Child addressed this issue in its first review of the United States’ compliance with the Optional Protocol, in which it criticized the United States’ asylum law as applied to former child soldiers. The United States’ asylum law currently includes several potential obstacles for former child soldiers seeking asylum, two of the most prevalent of which are the “persecution of others” bar and the “material support” bar. If the United States is to come into compliance with the Optional Protocol, something must be done to provide greater protection under asylum law to former child soldiers.

On May 19, 2008, the United States Court of Appeals for the Fourth Circuit held that an alien was foreclosed from establishing that alleged ineffective assistance of counsel deprived him of his right to due process, as aliens do not possess any constitutional right to effective assistance of counsel in immigration proceedings, and thus any ineffectiveness of privately retained counsel cannot be imputed to the government for purposes of establishing a violation of the Fifth Amendment. On its face, the holding of the Fourth Circuit regarding this issue seems spectacularly uninteresting—immigration proceedings have long been recognized to be civil in nature, and thus the Sixth Amendment does not provide any right to counsel. Without a constitutional right to counsel, there can be no constitutional violation if privately retained counsel performs ineffectively, as there will be no nexus in those circumstances between the counsel’s ineffectiveness and the state action required for invoking the Constitution. Notwithstanding this seemingly straight-forward analysis, the Fourth Circuit joined just one other court, the Court of Appeals for the Seventh Circuit, in finding that ineffective assistance of counsel in immigration proceedings does not constitute a violation of an alien’s right to due process. Every other court of appeals that addressed this issue has found that, although the Sixth Amendment does not guarantee a right to counsel in immigration proceedings, ineffective assistance of counsel may render the proceedings so fundamentally unfair and so impeding the presentation of an alien’s case that the ineffectiveness could deprive an alien of his right to due process under the Fifth Amendment. These courts have reached this conclusion in a perfunctory fashion, without squarely reconciling Supreme Court precedent that seems to argue strongly against the possibility that the ineffective assistance of counsel may constitute a violation of due process in circumstances where the Constitution does not provide a right to counsel.

On the parched plaza outside the U.S. Consulate in Monterrey, Mexico, hundreds of men and women lean against tree trunks or press their backs into the consulate wall, seeking any sliver of shade. They wait to be fingerprinted, interviewed, and – with luck – approved as one of the 175,000 guest workers admitted to the United States each year. An ordinary day in May 2005 – or perhaps not quite. Under one tree, a meeting is underway. At the center of a circle stands a labor organizer, copy of a contract in hand. Asegúrense que sus derechos sean respetados, he urges the crowd, all of whom are bound for North Carolina. “Make sure that your rights are respected.” Another man, his crisp shirt and spotless jeans belying the previous sixteen hours spent on a bus from his hometown, stands up and offers advice to the others. Cuidado con el patrón en Ranch Farm. “Careful with the boss at Ranch Farm.” He continues: “He’s still trying to get away with piece rate when he’s supposed to be paying us by the hour. Call the union’s North Carolina office if it happens to you.” Others nod assent. After half an hour of sharing information and reestablishing bonds, the group disperses. Before the week’s end, they will be thinning tobacco plants in the hot Carolina fields. For the first time in history, guest workers are about to cross the border into the United States as union members.

Over one million new immigrants arrive in the United States each year. This spring, Americans saw several times that number pour into the streets, protesting proposed changes in U.S. immigration and guest work policies. As the signs they carried indicated, most migrants come to work, and it is in the workplace that the impact of large numbers of newcomers is most keenly felt. For those who see both the free movement of people and the preservation of decent working conditions as essential to social justice, this presents a seemingly unresolvable dilemma. In a situation of massive inequality among countries, to prevent people from moving in search of work is to curtail their chance to build a decent life for themselves and their families. But from the perspective of workers in the country that receives them, the more immigrants, the more competition, and the worse work becomes.